Saturday, 7 January 2012

Regulatory convergence - same old question, same right answer

Browsing through the responses to the Communications Review
Open Letter in advance of the forthcoming Green Paper, I came across the answer from the Oxford
Internet Institute to the posed question "Is regulatory convergence across
different platforms desirable and, if so, what are the potential issues to
implementation?".The OII says, very sensibly:

"... it would be a significant mistake to seek
regulatory convergence across platforms if this means imposing a model of
broadcast regulation on the Internet. It is often assumed that the Internet is
a modern era ‘Wild West’, lawless and unregulated. In fact, the opposite is
true – there is already extensive regulation of Internet service provision,
content and activities. We would argue that traditional regulatory models for
broadcasting, common carriers (such as post or telecommunications) and the
press cannot be imposed wholesale on the Internet without serious risks to its
vitality and its contribution to the UK economy as well as potential chilling
effects of speech."

I was reminded of another Green Paper 14 years ago - the
European Commission Convergence Green Paper - which raised much the same
question.At the time, alarmed at the
possibility that policymakers might unthinkingly apply anachronistic broadcast
regulation to the internet, I wrote a piece for the Financial Times (8 April
1998) entitled "Networks without broadcast constraints".Unblushingly I reproduce it below, if only to
suggest that while the question may recur, the right answer remains unchanged.

“In the 17th century John Milton, in his celebrated
Areopagitica, argued against Oliver Cromwell's licensing of books and
newspapers. Today,with the rise of the internet, the battle has begun for
freedom of the digital networks.

The battleground is Brussels. Last December the
European Commission published a Green Paper called "Convergence of the
Telecommunications, Media and Information Technology Sectors, and the
Implications for Regulation".

Convergence is the phenomenon that, thanks to
advances in IT and communications technology, content no longer respects the
technical boundaries of telephone, radio, television and cable. The Green Paper
identifies the internet as "both the symbolic and prime driver". The
Green Paper, open for consultation until the end of April, begins a debate
about the regulatory environment for digital content. The outcome is important
for traditional print media. As paper content migrates to digital networks,
should digital content be licensed and subject to discretionary regulation as
if it were broadcast?

Or should it be like print, which in liberal
countries needs no licence and whose publishers are answerable only to general
laws enacted by democratic institutions and enforced by independent courts ? In
the rush to devise policy proposals for the internet, it is easy to assume that
it is another variety of new media, which like broadcast should subject to discretionary content regulation. Even if that could be
justified, the analogy is misconceived. Spectrum on the internet is far from
scarce. Internet content is not invasive. Every internet user is also
potentially a publisher. The US Supreme Court, in the Communications Decency
Act case, accepted these differences from broadcast media. It concluded that
the net's content is as diverse as human thought and it deserved the highest
degree of First Amendment protection.

Even so, digital networks remain at risk of having
broadcast regulation imposed upon them. Outside Europe, Singapore has imposed a
class licensing scheme for the internet under the control of the Singapore
Broadcasting Authority. The UK Broadcasting Act arguably could apply to moving
pictures on the net.

If the Broadcasting Act were to be extended to web
versions of UK newspapers, they would have to be censored to comply with the
Act's requirements of political and public policy neutrality. No editorials on
the web. Freedom of speech would be the preserve of an ever-diminishing print
rump. The Green Paper does acknowledge the principle of "no regulation for
regulation's sake". It rightly points out that the IT industry operates in
an unlicensed environment. It mentions that convergence may challenge licensing
approaches based on perceived scarcity of radio-frequency and content. It
refers to the possibility that different standards may apply to the same
content provided over different platforms. It tends to favour lighter
regulation. However, as paper content migrates to the networks, the Green Paper
pays little attention to the need to preserve the freedom to publish that
content without permission from the state.

Nowhere does it suggest a clear principle that
licensing and discretionary regulation are inappropriate for content published
over networks. Instead the paper tends to emphasise "self-regulatory"
approaches that risk verging on government regulation by another name.

It points out that self-regulation for the net may
lead to divergent approaches unless co-ordinated to some degree at a community
level. So much for diversity - the essence of the internet - as a positive good.
Martin Bangemann, EU commissioner, has called for an International Charter for
global communications. He also suggested the possible need for a European
Communications Act covering infrastructure, services, content and conditions of
access.

A recurring theme in the debate is the need to
regulate internet content effectively. Mr Bangemann, describing reactions to
his call for an international charter, says that some people who are afraid we
are heading for anarchy considered the internet something that must be brought
under strict control.

The real need is to free the internet and other
digital networks from the threat of censorship by licensing and discretionary
regulation, and to establish them as subject only to settled laws protecting
free speech, enforced by independent judges. If that were embodied in Mr.
Bangemann's charter, it would be progress indeed. Achieving it in a world
replete with countries whose governments do not value freedom of speech should
be the important task for international lawmakers.”

Please Note

The views expressed in this blog are the personal views of Graham Smith alone and are not attributable to the law firm for which he works or to any of its clients. Nothing in this blog constitutes legal advice. Always take advice from a suitably qualified legal practitioner in relation to a specific matter.